| People v Williams |
| 2014 NY Slip Op 04613 [118 AD3d 1429] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLarry Williams, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
Larry Williams, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered December 10, 2010. The judgment convicted defendant, upon his plea ofguilty, of arson in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofarson in the second degree (Penal Law § 150.15), defendant contends in hismain brief on appeal that his statements to the police were not preceded byMiranda warnings and thus that Supreme Court erred in refusing to suppressthose statements. We reject that contention. " 'Where, as here, the People haveinitially demonstrated the legality of the police conduct and defendant's waiver, theburden of persuasion on the motion to suppress rests with defendant' " (People v Dunlap, 24 AD3d1318, 1319 [2005], lv denied 6 NY3d 812 [2006]). Contrary to defendant'scontention, he failed to meet his burden. The minor inconsistencies in the testimony ofthe police witnesses at the suppression hearing concerning the precise time when thewarnings were provided does not undermine the court's determination that thosewitnesses were credible (seePeople v Shaw, 66 AD3d 1417, 1418 [2009], lv denied 14 NY3d 773[2010]). Defendant's remaining contentions with respect to suppression of items seized asa result of his statements are moot in light of our determination. Defendant failed topreserve for our review his contention in his pro se supplemental brief that the policearrested him without probable cause inasmuch as "he failed to request a probable causehearing or to raise that contention at the Huntley hearing" (People v Mobley, 49 AD3d1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d1666, 1667 [2011], lv denied 19 NY3d 868 [2012]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]).
Defendant's further contention in his main brief that his plea was not knowing,intelligent and voluntary because he did not recite the underlying facts of the crime "isactually a challenge to the factual sufficiency of the plea allocution" (People v McCarthy, 83 AD3d1533, 1534 [2011], lv denied 17 NY3d 819 [2011] [internal quotation marksomitted]). That challenge is unpreserved for our review because defendant did not moveto withdraw the plea or to set aside the judgment of conviction (see People vLopez, 71 NY2d 662, 665 [1988]). In any event, "[t]he record establishes thatdefendant confirmed the accuracy of Supreme Court's recitation of the facts underlyingthe crime, and contrary to [his] contention, there is no requirement that [he] personallyrecite those facts" (People vWhipple, 37 AD3d 1148, 1148 [2007], lv denied 8 NY3d 928 [2007];see People v Simcoe, 74AD3d 1858, 1859 [2010], lv denied 15 NY3d 778 [2010]).
Defendant also contends in his pro se supplemental brief that he was denied effectiveassistance of counsel. That contention "involves matters outside the record on appeal,and thus the proper procedural vehicle for raising [it] is by way of a motion pursuant toCPL 440.10" (People vWilson, 49 AD3d 1224, 1225 [2008], lv denied 10 NY3d 966 [2008]; see People v Johnson, 81AD3d 1428, 1428 [2011], lv denied 16 NY3d 896 [2011]; People v Cobb, 72 AD3d1565, 1567 [2010], lv denied 15 NY3d 803 [2010]). He further challengestherein his adjudication as a second felony offender on the ground that the underlyingconviction was obtained in violation of his constitutional rights. That challenge is notproperly before us. "Defendant did not challenge the predicate felony statementsubmitted by the People pursuant to CPL 400.21 and may not challenge his secondfelony offender status for the first time on appeal" (People v Brown, 207 AD2d962, 962 [1994], lv denied 85 NY2d 860 [1995]; see People v Smith, 73NY2d 961, 962-963 [1989]; People v Fidler, 28 AD3d 1220, 1221 [2006], lv denied7 NY3d 755 [2006]).
Finally, we reject defendant's challenge in his main brief to the severity of thesentence. Present—Smith, J.P., Peradotto, Sconiers, Whalen and DeJoseph,JJ.